Wednesday, January 27, 2016

Hammond v. United States

Written on January 27th, 2016

            At 4:25 P.M. Pacific Time on Tuesday, January 26th, 2016, seven or eight people were arrested by F.B.I. agents along Highway 395 in Oregon, during a traffic stop near a roadblock, and charged with felony counts of impeding federal officers. One person was killed during the arrests.

The people who were arrested are members of the group of so-called “militia” which, on January 2nd, 2016, staged an armed occupation of the Malheur National Wildlife Refuge in rural southeastern Oregon, in protest of what they consider an illegal and unconstitutional land-grab of the Hammond ranch, by the Federal Bureau of Land Management (B.L.M.). The wildlife refuge is located about thirty miles south of the town of Burns, Oregon, and the Hammond ranch lies 53 miles south of Burns.
One of the arrestees, Ammon Bundy, whose brothers are also among the protesters (or “militia”), has been described by some sources as the leader of the protests, but the Hammonds have said that the Bundys and the militia men do not speak for them. According to Ammon Bundy’s brother Ryan Bundy, whom was shot during the arrest, the militants demanded that the Hammonds be released, and that the surrounding federal lands be ceded back to local control, referring to Harney County, Oregon.
Ammon and Ryan Bundy are the sons of Cliven Bundy, the Nevada rancher who, in the spring of 2014, was involved in a standoff with federal authorities over cattle grazing rights, and came under fire nationally after an interview on FOX News, in which he suggested that blacks had a better quality of life under slavery than in modern times.

According to the Facebook page of the Bundy Ranch, Arizona resident and rancher Robert “LaVoy” Finicum, was shot and killed by police during the arrest. It has been alleged that Finicum was shot three times, while he had his hands above his head, and was surrendering. It is unclear who shot first during the encounter. Authorities claim that Finicum failed to surrender as directed.
            In a video titled “Mark McConnell describes LaVoy Finicum’s fatal shooting”, which was posted to the YouTube channel of Travis Gettys on January 27th, Mark McConnell, whom was also arrested, and said he was Ammon Bundy’s bodyguard, stated that according to Shawna Cox and Ryan Payne, Finicum drove away from F.B.I. agents, and then charged officers. However, McConnell also stated that Cox changed her story several times. McConnell's video has since been taken down.
            In a video entitled “Government Treats Native Artifacts as Doorstops!” which was posted to the Bundy Ranch Facebook page on the night of the arrest, Finicum stated that he grew up on a Navajo reservation; spent time with Lakota on a Sioux reservation; and has Navajo, Comanche, and Pima ancestry.
In the same video, Finicum stood outside the office of the occupied Malheur National Wildlife Refuge, and showed some Native American artefacts that were on the ground outside the door of the building. Finicum criticized the federal government for neither handling the artefacts carefully nor holding them sacred, and invited the people of Harney County to “throw off the B.I.A.”; the federal Bureau of Indian Affairs.

Since 1964, two different properties have been owned by Dwight Hammond, Jr., whose son Steven also works at the ranch. Throughout the 1970s, 1980s, and 1990s, the B.L.M. and the U.S. Fish and Wildlife Service (F.W.S.) expanded the size of the now 187,000-acre Malheur National Wildlife Refuge, and bought up many of the ranches adjacent to the Hammonds’ property.
During that time period, conflicts between the B.L.M. and the F.W.S. and the Hammonds (over road and water rights, and cattle grazing permits) – as well as between county and federal authorities – resulted in financial hardships which resulted in the Hammonds selling-off their original 6,000-acre property. The conflicts also resulted in the Hammonds being required to build fences which cut the size of their property in half. The Hammonds purchased another ranch, but acquired the original property again after the man who purchased it from them, passed away. Today the Hammonds own 12,000 acres in the Diamond-Frenchglen area.

In the early fall of 2001, the Hammonds set a fire on their own 10,000-acre private property, which spread to the Steens Mountain Cooperative Management and Protection Area. The Hammonds informed the fire department that they were going to set this fire, as a routine prescribed burn, to burn off invasive species.
According to conflicting reports, the fire burned 139 acres of grass (127 according to some sources) out of the 26,420 acres of B.L.M.-managed land that the Hammonds used for summer grazing. At that time, there was no communication about the burn from the federal government to the Hammonds. After the fire, Steven Hammond called the B.L.M. office in Burns, Oregon, to inform them about the fire.
At trial, witnesses, including a relative of the Hammonds, testified that the fire occurred shortly after Steven Hammond and his hunting party killed several deer on B.L.M. property, allegedly illegally. Prosecutors, and a teenage relative of the Hammonds, told the jury that Steven Hammond instructed others to light matches, drop them on the ground, and told them that they were going to “light up the whole country on fire”. The Hammonds allegedly told one of their relatives that nobody needed to know about the fire, and not to tell anyone about it. One witness testified that he barely escaped the eight- to ten- foot high flames.
According to a June 2013 writ of certiorari, the fires “caused minimal damage and, arguably, increased the value of the land for grazing. The district court found no one was endangered by the fires.”

In August 2006, the Hammonds set another fire, a backburn, in order to protect the winter range of their ranch, as well as their home, from an approaching wildfire, which was sparked by a massive lightning storm. Dwight Hammond’s wife Susan later said that “the backfire worked perfectly, it put out the fire, saved the range and possibly our home.”
The government later sought $1 million in damages from the fire, which reportedly threatened the lives of volunteer firefighters who were camping nearby.

The Hammonds were charged with arson, and served two years in prison. However, due to a provision of the Antiterrorism and Effective Death Penalty Act of 1996, “Whoever maliciously damages or destroys… by means of fire… any… real property… owned or possessed by … the United States … shall be imprisoned for not less than 5 years” and not more than twenty years.
In 2012, the first federal judge to handle the case deemed the mandatory minimum sentence to be too stiff, and sentenced the Hammonds to two years in prison. According to the U.S. Attorney’s Office, the trial court “imposed sentences well below what the law required based on the jury’s verdicts”.
The federal government’s attorney appealed the case, seeking additional prison time for the Hammonds. According to some sources, such appeals are routine; but according to other sources, such appeals are rare.
In October 2015, the Ninth Circuit Court of Appeals imposed the mandatory minimum sentence, ruling that the five-year sentence was “not grossly disproportionate to the offense” of arson. The court gave the Hammonds credit for the time they had already served. The Hammonds turned themselves in to a California prison on the afternoon of January 3rd, 2016.

A video posted to YouTube, which was made in January 2016 by a protester supporting the Hammonds’ cause, alleged that the government had violated the Bill of Rights in its actions against the Hammonds; namely, the First Amendment right to file a petition for redress of grievances; the Fifth Amendment freedom from double jeopardy, and the Eighth Amendment freedom from cruel and unusual punishment.
The creator of the video claimed that government had denied a petition for redress of grievances, most likely referring to an online petition filed to the Governor of Oregon and several other government officials, on December 11th, 2015, which asserted that the Hammonds “were not afforded their rights to due process” by the state and Harney County, that the Hammonds “committed no crime” in setting the prescribed burn, and that “the U.S. Government does not have authority to enforce Territorial law under Article Four within the State of Oregon”.
The creator of the YouTube video also asserted that the second prison sentence imposed upon the Hammonds constituted double jeopardy; and also that to send Dwight Hammond, now 74 years old, back to prison, would constitute cruel punishment.

In my opinion, the Hammonds are not guilty of arson, and should not be punished in pursuance of the Antiterrorism and Effective Death Penalty Act of 1996. Regardless of which level of government owns the damaged land, it is simply not the case that the Hammonds lit the 2006 backburn maliciously, which in my opinion should be viewed as the operative and key word of that law.
In my opinion, since the Hammonds did not act with malicious intent to destroy public or government property, but rather lit the fire in order to protect their home and property, they are not guilty of arson, and certainly should not be punished further, especially not in pursuance to a federal law originally intended to punish terrorism.
Even if the witness was correct that Steven Hammond told him that the fire would “light up the whole country”, this does not necessarily mean that the intent was to destroy public property. Moreover, the word “country”, most likely, simply refers to the land, rather than the nation or its government.

However, the allegation that the Hammonds set the 2001 fire following illegal deer poaching, and in order to cover that poaching up, it very well may be that there was malicious intent in that act, if indeed it could be successfully argued that those deer were government property. But that even if that could be argued, that is not the property that the government sued the Hammonds for destroying.
Regardless of the conflicts between the various levels and agencies of government, versus the Hammonds and their private property, and regardless of the Hammonds’ guilt or innocence, it seems obvious to me, now, after examining these facts, that one very important thing has been ignored throughout all the reporting on the Hammonds and the Bundys, and the armed occupation of the so-called “federal building”, the shack office at the Malheur National Wildlife Refuge.
This is that – keeping in mind that the office was occupied the day before the Hammonds turned themselves in to authorities in order to report for their prison sentences – the Hammonds are not, and have not been, the parties occupying that office. Perhaps this explains why the Hammonds told media that the Bundys and the self-described militia do not represent them. Therefore, in my opinion, we can hardly blame the Hammonds for the occupation, nor the behavior of the occupiers, nor the actions of Ammon Bundy and his brothers.













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